Excerpt:property - amendment in reference application - order 6 rule 17 of code of civil procedure, 1908 and sections 18 and 19 of land acquisition act, 1894 -whether reference application can be amended on this ground - in case mistake was due to collector it can be remedied at later stage - proceedings being before court reference application can be amended by an application made to court.
- - it will be better if the amended appliciition is placed before the collector for making a proper reference i, thereforee, dismiss this revision petition with costs......a little unusual because the original reference petition bioved by the respondent sis ram to the land acquisition collector had mentioned in the application field no. 38/1 as one of the areas involved in the acquisition, la the reference, made under section 19 of the act, the land acquisition collector stated that field no. 38/1 was sot included in the acquisition and. thereforee, no refe- rence concerning the same could be made. while staling the situation and extent of the land involved in the reference under section 19(1) of the act, the collector stated in a note that this land was not being incluled in the reference as it was not acquired. the reference itself was made by the collector some time in 1969 and the application under section 18 praying for a reference t^ the land.....

Judgment:

D. K. Kapur, J.

(1) This is a Revision under the Code of Civil Procedure a-ainst the decision of the Additional District Judge, Delhi, dated 24th August, 1971 passed during the hearing of a re- -ference under the Land Acquisition Act, 1894, whereby the application for a refernce mder Section 18 of of the Act was peimitted to be amend- aj. The facts of the ca'e are a little unusual because the original reference petition Bioved by the respondent Sis Ram to the Land Acquisition Collector had mentioned in the application field No. 38/1 as one of the areas involved in the acquisition, la the reference, made under Section 19 of the Act, the Land Acquisition Collector stated that field No. 38/1 was sot included in the acquisition and. thereforee, no refe- rence concerning the same could be made. While staling the situation and extent of the land involved in the reference under Section 19(1) of the Act, the Collector stated in a note that this land was not being incluled in the reference as it was not acquired. The reference itself was made by the Collector some time in 1969 and the application under Section 18 praying for a reference t^ the Land Acquisition court was made to the Land Acquisition Collector on 24th December, 1968.

(2) Before the Additional District Judge, the clairntanl-responclent moved an application under Order 6, Rule 17 of the Code of Civil Procedure for an amendment of the reference application on 11th August, 1971, i. e., nearly three years after the original application. In this application, it was stated that the petitioner had received a notice under Section 9 of the Act concerning the acquisition in which the land in question had been described as Khasra No. 38/1 and no notica had been served on the claimant with respect to KhasraNo. 38/2, and hence the claimant had been denied an opprtunity to seek a reference wi(h respect to Khasra No. 38/2. It was, thereforee, prayed that the reference petition should be allowed to be amended by subst- ituting Khasra No. 38/2 in place of Khaira No. 38/1, the mistake in the reference petition having occurred due to an incoirect number having been mentioned in ihe notice issued to the claimant under Section 9 of the Act by the Lard Acquisition Collector. The power of the Court to make such an amendment was challenged before the Additional District Judge, however, the amendment has been allowed on pay- ment of Rs. 10.00 as costs.

(3) The order allowing the amendment has been challenged by the Union of India on the the ground that the reference cannot be changed by the Land Acquitision Court which is bound by the terms of the reference made under Section 19 of the Act This proposition is disputed by the respondent and it is also submitted that costs have already been accepted and hence the petitoner is dis-enlitled to challenge the amendent allowed.

(4) I have no doubt that the Court is bound by the reference which is mide by the Collestor. However, the Collector himself h.is no authority to refuse to nailts a reference in accordance with the application under section 18 of the Act moved by the clumant. It was held by toe Supreme Court in Dr. G. H. Gra'lt v. The State of Bihar^, iat page 243 ai tollJWS :-

'AGAINunder Section Is the Collector i8 bound to make a reference on a petition filed by a person interested'.

There is no doubt that the Collector is a mere functionary is the makiag of the reference. He is bound to make a referance and he can- not make any cnanges io the claim put forward by the cl ii n int bsfors him. The difficulty which has arisen in this case is that there was a mistake in the notice served on the claimant which led him to ssek a reference regarding the wrong area- Having subsequently learnt that the actual field acquired was No. 98/2 and not 38/1, it is not surprising that the claimant has asked for an amsndiaeat in the reference appH- catioii. There are two ways of dealing with this matter. Bither it mast be held that the a-ward is invalid qua this Khasra or that the amaod- ment phould fae allowed so that the clainunt is enabled to get the de- lerminalionofthiBcota^aasation payable with respect to this area by the Court. I do not see any reason why an amendment to that appli- cation under gection 18 of the Act cannot -be allowed by the Additional District Judge. Under Section 53 of the Act, the Code of Civil Proce- dure is applicable to proceedings taken before the Court, if the Code is not inconsistent with the Act. The Code includes Order 6, Rule 1-7. For the purposes of proceedings under the Land Acquisition Act, Sec- corporation 18 is an enabling Section entitling the claimant to seek his remedy before the Court by requiring ihe Collector to mike a reference. T(ie Collector is bound to make a reference. Under Section 19 as held by the Supreme Court. If there is a mistake in the application, it can bs remedied by an amendment. Obviously, if the mislake is dus to the mistake of the Collector himself in issuing the notice, then the mistake can be remedied even at a late stage. As the proceedings are now be- fore the Court, the reference petition can only be amanded by an appli- cation made to the Court. I, thereforee, cannot accept the contention ef the petitioner that the refarence petition cannot be amended by the Court.

(5) I have been referred to an un reported decision of this Court. in which it was held that the Court did not have the power to amend a reference. The facts of that case are not set out in extenso is the judgment and it may be that the amendment was disallowed on the ground that on the facts of that case the amendment could not be allowed and was without jurisdiction. In the present case, it is the reference application which has been nllowed io be amended which is quite different from the reference itsalf When the application for reference is allowed to be amended, the ame'dment dates back to the date of the original application and it is fur the Collector now to make a reference in accordance with the amended application. It would thus be necessary that the case bs placed before the Colhetor for mak- ing an amended reference in accordance wilh the amended application.

(6) I have also been referred to the judgment in Dr. Sewak Panhad v. Gram Pancahyal Raipur Rani^, where it has been held that when costs have been accepted a party is precluded from challenging an order. The said judgment is based oa a series ofrepirted judgmsats including a judgment of the Supreme Court basej on title principle that a party cannot approbate andreproba;e. It has bsea unifor.Taly held that if a party takes advantage of an order i.e., costs, it is p.'scluded from chal- lenging the order. I, thereforee, hold that sven on lUis ground the pail' tioner is not entitled to challenge the order sought to be revised because cosis have already been paid to the petitioner in accordance with the impugned order.

(7) Thus, I upbold the order sougat to be revised on both thess grounds. I also make it clear that the amended reference application does not amend the reference itself and such an amandmsnt has to be made by the Collector himself under Section 19 of the Act. It will be better if the amended appliciition is placed before the Collector for making a proper reference I, thereforee, dismiss this Revision Petition with costs. Counsel's fee Rs. 50/'-.